Brain Scan Evidence Rejected by Brooklyn Court

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Brain Scan Evidence Rejected by Brooklyn Court

A judge in Brooklyn ruled to exclude fMRI evidence in an employer-retaliation case, delivering another blow to proponents of lie detection by brain scan.

The scans didn't even make it to the hearing that normally is used to determine the admissibility of scientific evidence in New York state court.

Defense attorney Jessica Cortes of the firm Davis and Gilbert won her motion to exclude the evidence without getting into the science behind brain scans. Juries are supposed to decide the credibility of the witness, she argued, and fMRI lie detection, even if it could be proven completely accurate, infringes on that right.

"Juries are supposed to determine if a witness is credible and take from that witness what is true," Cortes told Wired.com. "That's how our system works."

The plaintiff's attorney, David Zevin, confirmed that his side lost the battle. "The issue is dead in this case, at least until a possible appeal," he wrote in an e-mail to Wired.com. Zevin had sought to show that a witness he plans to call was telling the truth about the details of the case.

Much of the debate around fMRI lie detection techniques has centered on whether they will be reliable beyond the lab in real world conditions. But Cortes' legal victory suggests that if and when the science is settled, the legal questions probably won't be.

Wired.com has learned that more brain scans conducted by the company Cephos will be put to the legal test in a federal case in the western district of Tennessee. On May 13, that court will hear arguments over fMRI evidence in a Daubert hearing, the procedure used to assess the admissibility of scientific information in Federal court.

In that case, the U.S. attorney charges that Lorne Semrau, a psychiatrist, sought to defraud Medicare and Medicaid in the way he contracted and billed for his services. Semrau argues he had no intent to defraud the government and underwent a brain scan to prove it. His attorney, J. Houston Gordon, filed paperwork indicating that Stephen Laken, president of Cephos, would testify on the fMRI evidence the company obtained.

"Dr. Laken will further testify that Dr. Semrau was presented questions using fMRI technology and was instructed to respond to questions in either/both a truthful or deceitful manner, depending on the question posed," Gordon wrote. "The fMRI screening demonstrated to a scientific certainty, that Defendant was truthful and possessed no intent to defraud or cheat the government."

Both these cases demonstrate that the collision between fMRI technology and the legal system is likely to be long and messy. Wired Science will be tracking the Tennessee case as it develops.